[127] and can only be lost or destroyed by the folly or demerits of its owner; the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very differently from the modern constitutions of other states on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject, in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a free man; (g) though the master's right to his service may possibly still continue. 7 The absolute rights of every Englishman 'which taken in a political and extensive sense, are usually called their liberties), as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change; their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. 8 But the vigour of our free constitution has alway deli g Salk. 666. See ch. 14. munity, it is perfectly consistent with civil liberty. For Mr. Paley has well observed, that "it is not the rigour, but the inexpediency of laws and acts of authority, which makes them tyrannical." (B. vi. c. 5.) This is agreeable to that notion of civil liberty entertained by Tacitus, one who was well acquainted with the principles of human nature and human governments, when he says, Gothones regnantur paulò jam adductius, quam cæteræ Germanorum gentes, nondum tamen supra libertatem. De Mor. Germ. c. 43. It is very surprising that the learned commentator should cite with approbation (p. 6. and 125.) and that Montesquieu should adopt (p. xi. c. 13.) that absurd definition of liberty`given in Justinian's Institutes: Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur. In every country, and under all circumstances, the subjects possess the liberty described by this definition. When an innocent negro is seized and chained, or is driven to his daily toil by a merciless master, he still retains this species of liberty; or that little power of action, of which force and barbarous laws have not bereft him. But we must not have recourse to a system of laws, in which it is a fundamental principle, quod principi placuit, legis habet vigorem, for correct notions of liberty. So far the Editor thought it proper to suggest to the student the different significations of the word liberty; a word which it is of the utmost importance to mankind that they should clearly comprehend: for though a genuine spirit of liberty is the noblest principle that can animate the heart of man, yet liberty, in all times, has been the clamour of men of profligate lives and despe rate fortunes: Falsa libertatis vocabulum obtendi ab iis, qui privatim degeneres, in publicum exitiosi, nihil spei, nisi per discordias habeant; (Tac. 11 Ann. c. 17.) The first sentence of Hooker's Ecclesiastical Polity contains no less truth and eloquence: "He that goeth about to persuade a multitude, that they are not so well governed as they ought to be, shall never want attentive and favourable hearers." This subject might be elucidated by various instances, particularly from the laws and constitution of this country; and the editor cannot but cherish even a confident hope, that they who acquire the most intimate acquaintance with those laws and that constitution, will always be the most convinced, that to be free, is to live in a country where the laws are just, expedient, and impartially administered, and where the subjects have perfect security that they will ever continue so; and, allowing for some slight and perhaps inevitable imperfections, that to be free, is to be born and to live under the English constitution. Hanc retinete, quæso, Quirites, quam vodis tanquam hæreditatem, majores vestri reliquerunt. Cic. 4 Phil. Christian. (7) As to this point see post 425. A third person is liable to an action for enticing away a person who, whilst a slave, contracted to serve a person for a term of years, in consideration of his procuring his release from slavery. Keane v. Boycott. 2 Hen. Bla. 511. Nor can a servant, who comes over from the West Indies, where he has been a slave, and who continues in the service of his master in England without any agreement for wages, be entitled to any, unless there has been an express promise. Alfred v. Fitzjames. 3 Esp. R. 3. Chitty (8) Lord Camden concluded his judgment in the case of general warrants in the same words: E vered the nation from these embarrassments: and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger. First, by the great charter of liberties, which was obtained, sword in hand, from king John, and afterwards, with some alterations, confirmed in parliament by king Henry the Third, his son. Which charter contained very few new grants; but, as sir Edward Coke (h) observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio car- [128] tarum, (i) whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel, act contrary thereto, or in any degree infringe it. Next, by a multitude of subsequent corroborating statutes (sir Edward Coke, I think, reckons thirty-two), (k) from the first Edward to Henry the Fourth. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by king Charles the First in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the habeas corpus act, passed under Charles the Second. To these succeeded the bill of rights, or declaration delivered by the lords and commons to the prince and princess of Orange 13 Febuary 1668; and afterwards enacted in parliament when they became king and queen: which declaration concludes in these remarkable words; "and they do claim, de"mand, and insist upon, all and singular the premises, as their undoubted "rights and liberties." And the act of parliament itself (1) recognizes "all "and singular the rights and liberties asserted and claimed in the said de"claration to be the true, ancient, and indubitable rights of the people of "this kingdom." Lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement, (m) whereby the crown was limited to his present majesty's illustrious house: and some new provisions were added, at the same fortunate era, for better securing our religion, laws, and liberties; which the statute declares to be "the "birthright of the people of England," according to the ancient doctrine of the common law. (n) Thus much for the declaration of our rights and liberties. The rights themselves, thus defined by these several statutes, consist in [129] a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural h 2 Inst. proëm. i 25 Edw I. k 2 Inst. proëm. n Plowd. 55. m 12 & 13 W. III. c. 2. "One word more for ourselves; we are no advocates for libels; all governments must set their faces against them, and whenever they come before us and a jury, we shall set our faces against them; and if juries do not prevent them, they may prove fatal to liberty, destroy government, and introduce anarchy; but tyranny is better than anarchy, and the worst government better than none at all." 2 Wils. 292. (9) 31 Car. II. c. 2. amended and enforced by 56 Geo. III. c. 100. Chitty. liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property; because, as there is no other known method of compulsion, or of abridging man's natural free-will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense. I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and, by a potion or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though, not murder, was by the ancient law homicide or man[130] slaughter. (o) But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemes nor. (p) 10 An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; (g) and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. (r)" And in this point the civil law agrees with ours. (8) 2. A man's limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they o "Si aliquis mulierem pregnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam : si puerperium jam formatum fuerit, et maxime si fuerit animatum, fucit homicidium." Bracton, L. S. c. 21. p 3 Inst. 50. q Stat. 12. Car, II. c. 24. r Stat. 10 and 11 W. III. c. 16. s Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur. Ff. 1.5. 26. (10) But several alterations are introduced, and the offence rendered capital, by 43 Gen. III. c. 58. See post 4 vol. (11) Every legitimate infant in ventre de sa mere is considered as born for all beneficial purposes. Co. Lit. 36. 1 P. Wm. 329. Thus if lands be devised to B. for life, remainder to such child or children as shall be living at the time of his decease, a posthumous child will take equally with those who were born before B.'s death. Doe v. Clark. 2 Hen Bla 399. But the presumptive heir may enter and receive the profits to his own use, till the birth of the child, who takes land by descent. 3 Wils. 526. See 1 Ves. 81. 85. 2 Atk. 117.1 Freem. 244. 293.; also 2 vol. 169. post. Such infant, &c. may have a distributive share of intestate property even with the half-blood (1 Ves. 81.): it is capable of taking a devise of land (2 Atk. 117. 1 Freem. 244, 293.): it takes, under a marriage settlement, a provision made for children living at the death of the father. (I Ves. 85.) And it has lately been decided, that marriage and the birth of a posthumous child, amount to a revocation of a will executed previous to the marriage. (5 T. R. 49.) So in executory devises it is considered as a life in being, (7 T. R. 100.) Chitty. 4 cannot be wantonly destroyed, or disabled without a manifest breach of civil liberty. Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance. (t) And the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two sorts, duress of imprisonment, where a man [131] actually loses his liberty, of which we shall presently speak; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; non," as Bracton expresses it, “suspicio cujusibet vani et meticulosi hominis, sed talis qui possit cadere in "virum constantem; talis enim debet esse metus, qui in se contineat vitne "periculum, aut corporis cruciatum." (u) A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burned, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages: (w) but no suitable atonement can be made for the loss of life, or limb. 12 And the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit. (x) The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessaries of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the emperor Constantine commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our foundling hospitals, though comprised in the Theodosian code, (y) were rejected in Justinian's collection. These rights, of life and member, can only be determined by the [132] death of the person; which was formerly accounted to be either a civil or natural death. The civil death commenced, if any man was baw 2 Inst. 485. (Com. Dig. Pieader. 2 W. 20.) y l. 11. c. 27. 2 Inst. 483. x Ff. 48. 21. 1. u 1, 2. c. 5. (12) The law distinguishes between threats of actual violence against the person or such other threats as a man of common firmness cannot stand against, and other sorts of threats. See the King v, Southerton. 6 East, 141. Co. Lit. 162. a. Com. Dig. Pleader. 2 W. 20. Chitty. nished or abjured the realm (z) by the process of the common law, or entered . into religion; that is, went into a monastery, and became there a monk professed: in which cases he was absolutely dead in law, and his next heir should have his estate. For such banished man was entirely cut off from society; and such a monk, upon his profession, renounced solemnly all secular concerns; and besides, as the popish clergy claimed an exemption from the duties of eivil life and the commands of the temporal magistrate, the genius of the English laws would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations. (a) A monk was therefore accounted civiliter mortuus, and when he entered into religion might, like other dying men, make his testament and executors; or, if he made none, the ordinary might grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts, due to the religious, and were liable to the same actions for those due from him, as if he were naturally deceased. (b) Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors, and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due. (c) In short, a monk or religious was so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards became a monk, determined by such his entry into religion for which reason leases, and other conveyances for life, were usually made to have and to hold for the term of one's natural life. (d) But even in the times of popery, the law of England took no cogni[133] zance of profession in any foreign country, because the fact could not be tried in courts; (e) and therefore, since the Reformation, this disability is held to be abolished: (ƒ) as is also the disability of banishment, consequent upon abjuration, by statute 21 Jac. I. c. 28. 13 This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently inquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subjects, such constitution is in the highest degree tyrannical: and that whenever any z Co. Litt. 133. a This was also a rule in the feodal law, l. 2. t. 21. desiit esse miles seculi, qui factus est miles Christi, net beneficium pertinet ad eum qui non debet gerere officium. b Litt. § 200. c Co. Litt. 133. e Co. Litt. 132. d 2 Rep. 48. Co. Litt. 132. fI Salk. 162. (13) Where a man by act of parliament is attainted of treason or felony, and saving his life, is banished for ever: this lord Coke declares to be a civil death; but he says, a temporary exile is not a civil death. And for the same reason where a man receives judgment of death, and afterwards leaves the kingdom for life, upon a conditional pardon, this seems to amount to a civil death: this practice did not exist in the time of lord Coke, who says that a man can only lose his country by authority of parliament. Co. Lit. 133. Chitty |